510 U.S.

163

WEISS
v.
UNITED STATES
No. 92-1482.

Supreme Court of United States.

Argued November 3, 1993.
Decided January 19, 1994.*

After courts-martial sentenced petitioners Weiss and Hernandez, United

States Marines, on their pleas of guilty to offenses under the Uniform
Code of Military Justice (UCMJ), their convictions were affirmed by the
Navy-Marine Corps Court of Military Review in separate appeals. In
affirming Weiss' conviction, the Court of Military Appeals rejected his
contentions, first, that military trial and appellate judges have no authority
to convict because the method of their appointment by the various Judge
Advocates General under the UCMJ violates the Appointments Clause, U.
S. Const., Art. II, 2, cl. 2, and, second, that such judges' lack of a fixed
term of office violates the Fifth Amendment's Due Process Clause. Based
on this decision, the court summarily affirmed Hernandez' conviction.
Held:
1. The current method of appointing military judges does not violate the
Appointments Clause, which, inter alia, requires the President to appoint
"Officers of the United States" with the advice and consent of the Senate.
All of the military judges involved in these cases were already
commissioned military officers when they were assigned to serve as
judges, and thus they had already been appointed pursuant to the Clause.
The position of military judge is not so different from other positions to
which an officer may be assigned that Congress has by implication
required a second appointment under the Clause before the officer may
discharge judicial duties. The fact that the UCMJ requires military judges
to possess certain qualifications, including membership in a state or federal
bar, does not in itself indicate a congressional intent to create a separate
office, since special qualifications are needed to fill a host of military
positions. Moreover, the UCMJ's explicit and exclusive treatment of

military judges as officers who must be "detailed" or "assigned" by a

superior officer is quite different from Congress' treatment of a number of
top-level positions in the military hierarchy, such as Chairman of the Joint
Chiefs of Staff, for which a second appointment under the Clause is
expressly required. Nor does the Clause by its own force require a second
appointment. Buckley v. Valeo, 424 U. S. 1, and subsequent decisions
simply do not speak to this question. The present case is also
distinguishable from Shoemaker v. United States, 147 U. S. 282. Even
assuming, arguendo, that the "germaneness" principle set forth in
Shoemaker, id., at 300-301, applies to the present situation, no second
appointment is necessary because the role of military judge is "germane"
to that of military officer: By contrast to civilian society, non-judicial
military officers play a significant part in the administration of military
justice; and, by the same token, the position of military judge is less
distinct from other military positions than the office of full-time civilian
judge is from other offices in civilian society. Pp. 169-176.
2. The lack of a fixed term of office for military judges does not violate
the Due Process Clause. Neither Mathews v. Eldridge, 424 U. S. 319, nor
Medina v. California, 505 U. S. 437, provides a due process analysis that
is appropriate to the military context, in which judicial deference to
Congress' determinations is at its apogee. Rather, the appropriate standard
is that found in Middendorf v. Henry, 425 U. S. 25, 44: whether the
factors militating in favor of fixed terms are so extraordinarily weighty as
to overcome the balance struck by Congress. The historical fact that
military judges in the Anglo-American system have never had tenure is a
factor that must be weighed in this calculation. Moreover, the applicable
provisions of the UCMJ, and corresponding regulations, sufficiently
insulate military judges from the effects of command influence. Thus,
since neither history nor current practice supports petitioners' assumption
that a military judge who does not have a fixed term lacks the
independence necessary to ensure impartiality, petitioners have fallen far
short of satisfying the applicable standard. Pp. 176-181.
36 M. J. 224 and 37 M. J. 252, affirmed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
BLACKMUN, STEVENS, O'CONNOR, KENNEDY, SOUTER, and
GINSBURG, JJ., joined, and in which Scalia and Thomas, JJ., joined as to
Parts I and II-A. SOUTER, J., filed a concurring opinion, post, p. 182.
GINSBURG, J., filed a concurring opinion, post, p. 194. SCALIA, J., filed
an opinion concurring in part and concurring in the judgment, in which
THOMAS, J., joined, post, p. 195.

CERTIORARI TO THE UNITED STATES COURT OF MILITARY

APPEALS.
Alan B. Morrison argued the cause for petitioners. With him on the briefs
were Philip D. Cave, Dwight H. Sullivan, Eugene R. Fidell, and Ronald
W. Meister.
Solicitor General Days argued the cause for the United States. With him
on the brief were Acting Assistant Attorney General Keeney, Deputy
Solicitor General Bryson, Paul J. Larkin, Jr., Thomas E. Booth, Theodore
G. Hess, and Albert Diaz.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

We must decide in these cases whether the current method of appointing

military judges violates the Appointments Clause of the Constitution, and
whether the lack of a fixed term of office for military judges violates the Fifth
Amendment's Due Process Clause. We conclude that neither constitutional
provision is violated.

Petitioner Weiss, a United States Marine, pleaded guilty at a special courtmartial to one count of larceny, in violation of Article 121 of the Uniform Code
of Military Justice (UCMJ or Code), 10 U. S. C. 921. He was sentenced to
three months of confinement, partial forfeiture of pay, and a bad-conduct
discharge. Petitioner Hernandez, also a Marine, pleaded guilty to the
possession, importation, and distribution of cocaine, in violation of Article
112a, UCMJ, 10 U. S. C. 912a, and conspiracy, in violation of Article 81,
UCMJ, 10 U. S. C. 881. He was sentenced to 25 years of confinement,
forfeiture of all pay, a reduction in rank, and a dishonorable discharge. The
convening authority reduced Hernandez' sentence to 20 years of confinement.

The Navy-Marine Corps Court of Military Review, in separate appeals,

affirmed petitioners' convictions. The Court of Military Appeals granted
plenary review in petitioner Weiss' case to address his contention that the
judges in his case had no authority to convict him because their appointments
violated the Appointments Clause, and their lack of a fixed term of office
violated the Due Process Clause. Relying on its recent decision in United States
v. Graf, 35 M. J. 450 (1992), cert. pending, No. 92-1102, in which the court
unanimously held that due process does not require military judges to have a
fixed term of office, the court rejected Weiss' due process argument. 36 M. J.
224, 235, n. 1 (1992). In a splintered decision, the court also rejected

petitioner's Appointments Clause challenge.

4

Two of the five judges concluded that the initial appointment of military trial
and appellate judges as commissioned officers is sufficient to satisfy the
Appointments Clause. Id., at 225-234 (plurality opinion). A separate
appointment before taking on the duties of a military judge is unnecessary,
according to the plurality, in part because the duties of a judge in the military
justice system are germane to the duties that military officers already discharge.
Ibid. One judge concurred in the result only, concluding that the Appointments
Clause does not apply to the military. Id., at 234-240 (opinion of Crawford, J.).
The other two judges dissented separately. Both stressed the significant
changes brought about by the Military Justice Act of 1968, particularly the
duties added to the newly created office of military judge, and both concluded
that the duties of a military judge are sufficiently distinct from the other duties
performed by military officers to require a second appointment. See id., at 240256 (Sullivan, C. J., dissenting), and id., at 256-263 (Wiss, J., dissenting).

The Court of Military Appeals accordingly affirmed petitioner Weiss'

conviction. Based on its decision in Weiss, the court, in an unpublished opinion,
also affirmed petitioner Hernandez' conviction. Judgt. order reported at 37 M. J.
252 (1993). Weiss and Hernandez then jointly petitioned for our review, and
we granted certiorari. 508 U. S. 939 (1993).

It will help in understanding the issues involved to review briefly the contours
of the military justice system and the role of military judges within that system.
Pursuant to Article I of the Constitution, Congress has established three tiers of
military courts. See U. S. Const., Art. I, 8, cl. 14. At the trial level are the
courts-martial, of which there are three types: summary, special, and general.
The summary court-martial adjudicates only minor offenses, has jurisdiction
only over servicemembers, and can be conducted only with their consent. It is
presided over by a single commissioned officer who can impose up to one
month of confinement and other relatively modest punishments. Arts. 16(3), 20,
UCMJ, 10 U. S. C. 816(3), 820.

The special court-martial usually consists of a military judge and three courtmartial members,1 although the Code allows the members to sit without a
judge, or the accused to elect to be tried by the judge alone. Art. 16(2), UCMJ,
10 U. S. C. 816(2). A special court-martial has jurisdiction over most offenses
under the UCMJ, but it may impose punishment no greater than six months of
confinement, three months of hard labor without confinement, a bad-conduct
discharge, partial and temporary forfeiture of pay, and a reduction in grade. Art.
19, UCMJ, 10 U. S. C. 819. The general court-martial consists of either a

military judge and at least five members, or the judge alone if the accused so
requests. Art. 16(1), UCMJ, 10 U. S. C. 816(1). A general court-martial has
jurisdiction over all offenses under the UCMJ and may impose any lawful
sentence, including death. Art. 18, UCMJ, 10 U. S. C. 818.
8

The military judge, a position that has officially existed only since passage of
the Military Justice Act of 1968, acts as presiding officer at a special or general
court-martial. Art. 26, UCMJ, 10 U. S. C. 826. The judge rules on all legal
questions, and instructs court-martial members regarding the law and
procedures to be followed. Art. 51, UCMJ, 10 U. S. C. 851. The members
decide guilt or innocence and impose sentence unless, of course, the trial is
before the judge alone. Ibid. No sentence imposed becomes final until it is
approved by the officer who convened the court-martial. Art. 60, UCMJ, 10 U.
S. C. 860.

Military trial judges must be commissioned officers of the Armed Forces2 and
members of the bar of a federal court or a State's highest court. Art. 26, UCMJ,
10 U. S. C. 826. The judges are selected and certified as qualified by the
Judge Advocate General of their branch of the Armed Forces.3 They do not
serve for fixed terms and may perform judicial duties only when assigned to do
so by the appropriate Judge Advocate General. While serving as judges,
officers may also, with the approval of the Judge Advocate General, perform
other tasks unrelated to their judicial duties. Ibid. There are approximately 74
judges currently certified to preside at general and special courts-martial. An
additional 25 are certified to preside only over special courts-martial.

10

At the next tier are the four Courts of Military Review, one each for the Army,
Air Force, Coast Guard, and Navy-Marine Corps. These courts, which usually
sit in three-judge panels, review all cases in which the sentence imposed is for
one or more years of confinement, involves the dismissal of a commissioned
officer, or involves the punitive discharge of an enlisted servicemember. Art.
66, UCMJ, 10 U. S. C. 866. The courts may review de novo both factual and
legal findings, and they may overturn convictions and sentences. Ibid.
Appellate judges may be commissioned officers or civilians, but each must be a
member of a bar of a federal court or of a State's highest court. Ibid. The judges
are selected and assigned to serve by the appropriate Judge Advocate General.
Ibid. Like military trial judges, appellate judges do not serve for a fixed term.
There are presently 31 appellate military judges.

11

Atop the system is the Court of Military Appeals, which consists of five civilian
judges who are appointed by the President, with the advice and consent of the
Senate, for fixed terms of 15 years. Arts. 67, 142, UCMJ, 10 U. S. C. 867,

942 (1988 ed., Supp. IV). The appointment and tenure of these judges are not at
issue here.
12

* The Appointments Clause of Article II of the Constitution reads as follows:

13

"[The President] shall nominate, and by and with the Advice and Consent of the
Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges
of the supreme Court, and all other Officers of the United States, whose
Appointments are not herein otherwise provided for, and which shall be
established by Law: but the Congress may by Law vest the Appointment of
such inferior Officers, as they think proper, in the President alone, in the Courts
of Law, or in the Heads of Departments." U. S. Const., Art. II, 2, cl. 2.

14

We begin our analysis on common ground. The parties do not dispute that
military judges, because of the authority and responsibilities they possess, act
as "Officers" of the United States. See Freytag v. Commissioner, 501 U. S. 868
(1991) (concluding special trial judges of Tax Court are officers); Buckley v.
Valeo, 424 U. S. 1, 126 (1976) ("[A]ny appointee exercising significant
authority pursuant to the laws of the United States is an `Officer of the United
States,' and must, therefore, be appointed in the manner prescribed by [the
Appointments Clause]"). The parties are also in agreement, and rightly so, that
the Appointments Clause applies to military officers. As we said in Buckley,
"all officers of the United States are to be appointed in accordance with the
Clause. . . . No class or type of officer is excluded because of its special
functions." Id., at 132 (emphasis in original).

15

It follows that those serving as military judges must be appointed pursuant to

the Appointments Clause. All of the military judges involved in these cases,
however, were already commissioned officers when they were assigned to
serve as judges,4 and thus they had already been appointed by the President
with the advice and consent of the Senate.5 The question we must answer,
therefore, is whether these officers needed another appointment pursuant to the
Appointments Clause before assuming their judicial duties. Petitioners contend
that the position of military judge is so different from other positions to which
an officer may be assigned that either Congress has, by implication, required a
second appointment, or the Appointments Clause, by constitutional command,
requires one. We reject both of these arguments.

16

Petitioners' argument that Congress by implication has required a separate

appointment is based in part on the fact that military judges must possess
certain qualifications, including membership in a state or federal bar. But such

special qualifications in themselves do not, we believe, indicate a congressional

intent to create aseparate office. Special qualifications are needed to perform a
host of military duties; yet no one could seriously contend that the positions of
military lawyer or pilot, for example, are distinct offices because officers
performing those duties must possess additional qualifications.
17

Petitioners' argument also ignores the fact that Congress has not hesitated to
expressly require the separate appointment of military officers to certain
positions. An additional appointment by the President and confirmation by the
Senate is required for a number of top-level positions in the military hierarchy,
including: the Chairman and Vice Chairman of the Joint Chiefs of Staff, 10 U.
S. C. 152, 154; the Chief and Vice Chief of Naval Operations, 5033,
5035; the Commandant and Assistant Commandant of the Marine Corps,
5043, 5044; the Surgeons General of the Army, Navy, and Air Force, 3036,
5137, 8036; the Chief of Naval Personnel, 5141; the Chief of Chaplains,
5142; and the Judge Advocates General of the Army, Navy, and Air Force,
3037, 5148, 8037.

18

With respect to other positions, however, Congress has spoken quite differently.
The Deputy and Assistant Chiefs of Staff for the Army, for example, are
"general officers detailed to these positions." 3035 (emphasis added). The
Chief of Staff of the Marine Corps and his assistants are "detailed" to those
positions by the Secretary of the Navy. 5045. Commissioned officers "may be
detailed for duty" with the American Red Cross by the appropriate military
Secretary. 711a. Secretaries of military departments "may assign or detail
members of the armed forces" to be inspectors of buildings owned or occupied
abroad by the United States. 713. The Secretary of the Navy "may assign"
enlisted members of the Navy to serve as custodians of foreign embassies and
consulates. 5983. And the President may "detail" officers of the Navy to
serve as superintendents or instructors at nautical schools. This contrasting
treatment indicates rather clearly that Congress repeatedly and consistently
distinguished between an office that would require a separate appointment and a
position or duty to which one could be "assigned" or "detailed" by a superior
officer.

19

The sections of the UCMJ relating to military judges speak explicitly and
exclusively in terms of "detail" or "assign"; nowhere in these sections is
mention made of a separate appointment. Section 826(a) provides that a
military judge shall be "detail[ed]" to each general court-martial, and may be
"detail[ed]" to any special court-martial. The military judge of a general courtmartial must be designated by the Judge Advocate General, or his designee,
826(c), but the appropriate Service Secretary prescribes by regulation the

manner in which military judges are detailed for special courts-martial, and
what persons are authorized to so detail them. Section 866, in turn, provides
that military appellate judges shall be "assigned to a Court of Military Review."
The appropriate Judge Advocate General designates a chief judge for each
Court of Military Review, and the chief judge determines "on which panels of
the court the appellate judges assigned to the court will serve and which
military judge assigned to the court will act as the senior judge on each panel."
Ibid. (emphasis added).
20

Congress' treatment of military judges is thus quite different from its treatment
of those offices, such as Chairman of the Joint Chiefs of Staff, for which it
wished to require a second appointment before already-commissioned officers
could occupy them. This difference negates any permissible inference that
Congress intended that military judges should receive a second appointment,
but in a fit of absentmindedness forgot to say so.

21

Petitioners' alternative contention is that even if Congress did not intend to

require a separate appointment for a military judge, the Appointments Clause
requires such an appointment by its own force. They urge upon us in support of
this contention our decisions in Buckley v. Valeo, 424 U. S. 1 (1976), Freytag
v. Commissioner, 501 U. S. 868 (1991), and Morrison v. Olson, 487 U. S. 654
(1988). These decisions undoubtedly establish the analytical framework upon
which to base the conclusion that a military judge is an "officer of the United
States"a proposition to which both parties agree. But the decisions simply do
not speak to the issue of whether, and when, the Appointments Clause may
require a second appointment.

22

The lead and dissenting opinions in the Court of Military Appeals devoted
considerable attention to, and the parties before us have extensively briefed, the
significance of our opinion in Shoemaker v. United States, 147 U. S. 282
(1893). There Congress had enacted a statute establishing a commission to
supervise the development of Rock Creek Park in the District of Columbia.
Three of the members were appointed by the President with the advice and
consent of the Senate, but the remaining two members were the Chief of
Engineers of the Army and the Engineer Commissioner of the District of
Columbia. Both of the latter were already commissioned as military officers,
but it was contended that the Appointments Clause required that they again be
appointed to their new positions. The Court rejected the argument, saying:

23

"[T]he argument is, that while Congress may create an office, it cannot appoint
the officer; that the officer can only be appointed by the President with the
approval of the Senate. . . . As, however, the two persons whose eligibility is

questioned were at the time of the passage of the act . . . officers of the United
States who had been theretofore appointed by the President and confirmed by
the Senate, we do not think that, because additional duties, germane to the
offices already held by them, were devolved upon them by the act, it was
necessary that they should be again appointed by the President and confirmed
by the Senate. It cannot be doubted, and it has frequently been the case, that
Congress may increase the power and duties of an existing office without
thereby rendering it necessary that the incumbent should be again nominated
and appointed." Id., at 300-301.
24

The present cases before us differ from Shoemaker in several respects, at least
one of which is significant for purposes of Appointments Clause analysis. In
Shoemaker, Congress assigned new duties to two existing offices, each of
which was held by a single officer. This no doubt prompted the Court's
description of the argument as being that "while Congress may create an office,
it cannot appoint the officer." By looking to whether the additional duties
assigned to the offices were "germane," the Court sought to ensure that
Congress was not circumventing the Appointments Clause by unilaterally
appointing an incumbent to a new and distinct office. But here the statute
authorized an indefinite number of military judges, who could be designated
from among hundreds or perhaps thousands of qualified commissioned officers.
In short, there is no ground for suspicion here that Congress was trying to both
create an office and also select a particular individual to fill the office. Nor has
Congress effected a "diffusion of the appointment power," about which this
Court expressed concern in Freytag, supra, at 878.

25

Even if we assume, arguendo, that the principle of "germaneness" applies to

the present situation, we think that principle is satisfied here. By enacting the
Uniform Code of Military Justice in 1950, and through subsequent statutory
changes, Congress has gradually changed the system of military justice so that
it has come to more closely resemble the civilian system. But the military in
important respects remains a "specialized society separate from civilian
society," Parker v. Levy, 417 U. S. 733, 743 (1974). Although military judges
obviously perform certain unique and important functions, all military officers,
consistent with a long tradition, play a role in the operation of the military
justice system.

26

Commissioned officers, for example, have the power and duty to "quell
quarrels, frays, and disorders among persons subject to [the UCMJ] and to
apprehend persons subject to [the UCMJ] who take part therein." Art. 7(c),
UCMJ, 10 U. S. C. 807(c). Commanding officers can impose nonjudicial
disciplinary punishment for minor offenses, without the intervention of a court-

martial, which includes correctional custody, forfeiture of pay, reduction in

grade, extra duties, restriction to certain limits, and detention of pay. Art. 15,
UCMJ, 10 U. S. C. 815. A commissioned officer may serve as a summary
court-martial or a member of a special or general court-martial. When acting as
a summary court-martial or as the president of a special court-martial without a
military judge, this officer conducts the proceedings and resolves all issues that
would be handled by the military judge, except for challenge for cause against
the president of a special court-martial without a military judge. Art. 51,
UCMJ, 10 U. S. C. 851. Convening authorities, finally, have the authority to
review and modify the sentence imposed by courts-martial. Art. 60, UCMJ, 10
U. S. C. 860. Thus, by contrast to civilian society, nonjudicial military
officers play a significant part in the administration of military justice.
27

By the same token, the position of military judge is less distinct from other
military positions than the office of full-time civilian judge is from other
offices in civilian society. As the lead opinion in the Court of Military Appeals
noted, military judges do not have any "inherent judicial authority separate
from a court-martial to which they have been detailed. When they act, they do
so as a court-martial, not as a military judge. Until detailed to a specific courtmartial, they have no more authority than any other military officer of the same
grade and rank." 36 M. J., at 228. Military appellate judges similarly exercise
judicial functions only when they are "assigned" to a Court of Military Review.
Neither military trial nor appellate judges, moreover, have a fixed term of
office. Commissioned officers are assigned or detailed to the position of
military judge by a Judge Advocate General for a period of time he deems
necessary or appropriate, and then they may be reassigned to perform other
duties. Even while serving as military trial judges, officers may perform, with
the permission of the Judge Advocate General, duties unrelated to their judicial
responsibilities. Art. 26(c), UCMJ, 10 U. S. C. 826(c). Whatever might be the
case in civilian society, we think that the role of military judge is "germane" to
that of military officer.

28

In sum, we believe that the current scheme satisfies the Appointments Clause.
It is quite clear that Congress has not required a separate appointment to the
position of military judge, and we believe it equally clear that the
Appointments Clause by its own force does not require a second appointment
before military officers may discharge the duties of such a judge.

II
29

Petitioners next contend that the Due Process Clause requires that military
judges must have a fixed term of office. Petitioners recognize, as they must, that

the Constitution does not require life tenure for Article I judges, including
military judges. See United States ex rel. Toth v. Quarles, 350 U. S. 11, 17
(1955). Nor does the trial by an Article I judge lacking life tenure violate an
accused's due process rights. See Palmore v. United States, 411 U. S. 389, 410
(1973). Petitioners thus confine their argument to the assertion that due process
requires military judges to serve for some fixed length of timehowever short.
30

Congress, of course, is subject to the requirements of the Due Process Clause

when legislating in the area of military affairs, and that Clause provides some
measure of protection to defendants in military proceedings. See Rostker v.
Goldberg, 453 U. S. 57, 67 (1981); Middendorf v. Henry, 425 U. S. 25, 43
(1976). But in determining what process is due, courts "must give particular
deference to the determination of Congress, made under its authority to regulate
the land and naval forces, U. S. Const., Art. I, 8." Ibid. Petitioners urge that
we apply the due process analysis established in Mathews v. Eldridge, 424 U.
S. 319, 334-335 (1976). The Government contends that Medina v. California,
505 U. S. 437 (1992), supplies the appropriate analytical framework.

31

Neither Mathews nor Medina, however, arose in the military context, and we
have recognized in past cases that "the tests and limitations [of due process]
may differ because of the military context." Rostker, supra, at 67. The
difference arises from the fact that the Constitution contemplates that Congress
has "plenary control over rights, duties, and responsibilities in the framework of
the Military Establishment, including regulations, procedures, and remedies
related to military discipline." Chappell v. Wallace, 462 U. S. 296, 301 (1983).
Judicial deference thus "is at its apogee" when reviewing congressional
decisionmaking in this area. Rostker, supra, at 70. Our deference extends to
rules relating to the rights of servicemembers: "Congress has primary
responsibility for the delicate task of balancing the rights of servicemen against
the needs of the military. . . . [W]e have adhered to this principle of deference
in a variety of contexts where, as here, the constitutional rights of servicemen
were implicated." Solorio v. United States, 483 U. S. 435, 447-448 (1987).

32

We therefore believe that the appropriate standard to apply in these cases is

found in Middendorf, supra, where we also faced a due process challenge to a
facet of the military justice system. In determining whether the Due Process
Clause requires that servicemembers appearing before a summary court-martial
be assisted by counsel, we asked "whether the factors militating in favor of
counsel at summary courts-martial are so extraordinarily weighty as to
overcome the balance struck by Congress." 425 U. S., at 44. We ask the same
question here with respect to fixed terms of office for military judges.

33

It is elementary that "a fair trial in a fair tribunal is a basic requirement of due
process." In re Murchison, 349 U. S. 133, 136 (1955). A necessary component
of a fair trial is an impartial judge. See ibid.; Tumey v. Ohio, 273 U. S. 510,
532 (1927). Petitioners, however, do not allege that the judges in their cases
were or appeared to be biased. Instead, they ask us to assume that a military
judge who does not have a fixed term of office lacks the independence
necessary to ensure impartiality. Neither history nor current practice, however,
supports such an assumption.

34

* Although a fixed term of office is a traditional component of the AngloAmerican civilian judicial system, it has never been a part of the military
justice tradition. The early English military tribunals, which served as the
model for our own military justice system, were historically convened and
presided over by a military general. No tenured military judge presided. See
Schlueter, The Court-Martial: An Historical Survey, 87 Mil. L. Rev. 129, 135,
136-144 (1980).

35

In the United States, although Congress has on numerous occasions during our
history revised the procedures governing courts-martial, it has never required
tenured judges to preside over courts-martial or to hear immediate appeals
therefrom.6 See W. Winthrop, Military Law and Precedents 21-24, 953-1000
(2d ed. 1920) (describing and reprinting the Articles of War, which governed
court-martial proceedings during the 17th and 18th centuries); F. Gilligan & F.
Lederer, 1 Court-Martial Procedure 11-24 (1991) (describing 20th-century
revisions to Articles of War, and enactment of and amendments to UCMJ).
Indeed, as already mentioned, Congress did not even create the position of
military judge until 1968. Courts-martial thus have been conducted in this
country for over 200 years without the presence of a tenured judge, and for
over 150 years without the presence of any judge at all.

B
36

As the Court of Military Appeals observed in Graf, 35 M. J., at 462, the

historical maintenance of the military justice system without tenured judges
"suggests the absence of a fundamental fairness problem." Petitioners in effect
urge us to disregard this history, but we are unwilling to do so. We do not mean
to say that any practice in military courts which might have been accepted at
some time in history automatically satisfies due process of law today. But as
Congress has taken affirmative steps to make the system of military justice
more like the American system of civilian justice, it has nonetheless chosen not
to give tenure to military judges. The question under the Due Process Clause is
whether the existence of such tenure is such an extraordinarily weighty factor

as to overcome the balance struck by Congress. And the historical fact that
military judges have never had tenure is a factor that must be weighed in this
calculation.
37

A fixed term of office, as petitioners recognize, is not an end in itself. It is a

means of promoting judicial independence, which in turn helps to ensure
judicial impartiality. We believe the applicable provisions of the UCMJ, and
corresponding regulations, by insulating military judges from the effects of
command influence, sufficiently preserve judicial impartiality so as to satisfy
the Due Process Clause.

38

Article 26 places military judges under the authority of the appropriate Judge
Advocate General rather than under the authority of the convening officer. 10
U. S. C. 826. Rather than exacerbating the alleged problems relating to
judicial independence, as petitioners suggest, we believe this structure helps
protect that independence. Like all military officers, Congress made military
judges accountable to a superior officer for the performance of their duties. By
placing judges under the control of Judge Advocates General, who have no
interest in the outcome of a particular court-martial, we believe Congress has
achieved an acceptable balance between independence and accountability.

39

Article 26 also protects against unlawful command influence by precluding a

convening authority or any commanding officer from preparing or reviewing
any report concerning the effectiveness, fitness, or efficiency of a military
judge relating to his judicial duties. Ibid. Article 37 prohibits convening
authorities from censuring, reprimanding, or admonishing a military judge
"with respect to the findings or sentence adjudged by the court, or with respect
to any other exercise of its or his functions in the conduct of the proceeding."
10 U. S. C. 837. Any officer who "knowingly and intentionally fails to
enforce or comply" with Article 37 "shall be punished as a court-martial may
direct." Art. 98, UCMJ, 10 U. S. C. 898. The Code also provides that a
military judge, either trial or appellate, must refrain from adjudicating a case in
which he has previously participated, Arts. 26(c),66(h), UCMJ, 10 U. S. C.
826(c), 866(h), and the Code allows the accused to challenge both a courtmartial member and a court-martial judge for cause, Art. 41, UCMJ, 10 U. S.
C. 841. The Code also allows the accused to learn the identity of the military
judge before choosing whether to be tried by the judge alone, or by the judge
and court-martial members. Art. 16, UCMJ, 10 U. S. C. 816.

40

The entire system, finally, is overseen by the Court of Military Appeals, which
is composed entirely of civilian judges who serve for fixed terms of 15 years.
That court has demonstrated its vigilance in checking any attempts to exert

improper influence over military judges. In United States v. Mabe, 33 M. J. 200

(1991), for example, the court considered whether the Judge Advocate General
of the Navy, or his designee, could rate a military judge based on the
appropriateness of the judge's sentences at courts-martial. As the court later
described: "We held [in Mabe] that the existence of such a power in these
military officers was inconsistent with Congress' establishment of the military
`judge' in Article 26 and its exercise violated Article 37 of the Code." Graf, 35
M. J., at 465. And in Graf, the court held that it would also Articles 26 and 37
if a Judge Advocate General decertified or transferred a military judge based on
the General's opinion of the appropriateness of the judge's findings and
sentences. Ibid.7
41

The absence of tenure as a historical matter in the system of military justice,

and the number of safeguards in place to ensure impartiality, lead us to reject
petitioners' due process challenge. Petitioners have fallen far short of
demonstrating that the factors favoring fixed terms of office are so
extraordinarily weighty as to overcome the balance achieved by Congress. See
Middendorf, 425 U. S., at 44.

42

For the reasons stated, we reject the petitioners' Appointments Clause and Due
Process Clause attacks on the judges who convicted them and those who heard
their appeals. The judgments of the Court of Military Appeals are accordingly

43

Affirmed.

Notes:
*

Together withHernandez v. United States, also on certiorari to the same court

(see this Court's Rule 12.2).
† Briefs of amici curiae urging reversal were filed for the American
Civil Liberties Union et al. by David B. Isbell, John Vanderstar, David H.
Resnicoff, Steven R. Shapiro, and Arthur B. Spitzer; and for the United States
Air Force Appellate Defense Division by Robert I. Smith, Jay L. Cohen, and
Frank J. Spinner.

Court-martial members may be officers or enlisted personnel, depending on the

military status of the accused; the members' responsibilities are analogous to,
but somewhat greater than, those of civilian jurors. See Art. 25, UCMJ, 10 U.
S. C. 825

All commissioned officers are appointed by the President, with the advice and
consent of the Senate. 10 U. S. C. 531

The Judge Advocate General for each service is the principal legal officer for
that service. See 10 U. S. C. 3037 (Army), 5148 (Navy-Marine Corps),
8037 (Air Force); Art. 1(1), UCMJ, 10 U. S. C. 801(1) (Coast Guard)

The constitutionality of the provision allowing civilians to be assigned to

Courts of Military Review, without being appointed pursuant to the
Appointments Clause, obviously presents a quite different question. See Art.
66(a), UCMJ, 10 U. S. C. 866(a). It is not at issue here

Although the record before us does not contain complete information regarding
the military careers of the judges involved in these cases, it is quite possible
that they had been appointed more than once before being detailed or assigned
to serve as military judges. This is because 10 U. S. C. 624 requires a new
appointment by the President, with the advice and consent of the Senate, each
time a commissioned officer is promoted to a higher gradee. g., if a captain is
promoted to major, he must receive another appointment.

Congress didcreate a nine-member commission in 1983 to examine,interalia,

the possibility of providing tenure for military judges. Military Justice Act of
1983, Pub. L. 98-209, 9(b), 97 Stat. 1393, 1404-1405 (1983). The
commission published its report a year later, in which it recommended against
providing a guaranteed term of office for military trial and appellate judges. See
D. Schlueter, Military Criminal Justice: Practice and Procedure 33-34, and nn.
86, 87 (3d ed. 1992) (listing members of commission and describing report).
Congress has taken no further action on the subject.

This added limitation on the power of the Judge Advocates General to remove
military judges refutes petitioners' contention that Judge Advocates General
have unfettered discretion both to appoint and remove military judges
JUSTICE SOUTER, concurring.

join the Court's opinion on the understanding that military judges, like ordinary
commissioned military officers, are "inferior officers" within the meaning of
the Appointments Clause. Because these cases would raise a far more difficult
constitutional question than the one the Court today decides if, as petitioners
argue, military judges were "principal officers," I write separately to explain
why I conclude that they are not

Under the Appointments Clause, the President "shall nominate, and by and

with the Advice and Consent of the Senate, shall appoint" all "Officers of the
United States" (or "principal officers," as we have called them, seeMorrison v.
Olson, 487 U. S. 654, 670 (1988); Buckley v. Valeo, 424 U. S. 1, 132 (1976)).
Art. II, 2. "[B]ut the Congress may by Law vest the Appointment of such
inferior Officers, as they think proper, in the President alone, in the Courts of
Law, or in the Heads of Departments." Ibid.
Military officers performing ordinary military duties are inferior officers, and
none of the parties to this case contends otherwise. Though military officers are
appointed in the manner of principal officers, no analysis permits the
conclusion that each of the more than 240,000 active military officers (see
Department of Defense, Military Manpower Statistics 18 (Mar. 31, 1993)
(Table 9)) is a principal officer. See Morrison v. Olson, supra, at 670-673
(outlining criteria for determining Appointments Clause status of a federal
officer). Congress has simply declined to adopt the less onerous appointment
process available for inferior officers.
The Uniform Code of Military Justice authorizes the Judge Advocate General
of the relevant branch of the Armed Forces to select as a military judge any
commissioned military officer who meets certain qualifications going to legal
knowledge and experience. See ante, at 168. If, as petitioners argue, military
judges were principal officers, this method of choosing them from among the
ranks of inferior officers would raise two constitutional questions. As to
military officers who received their commissions before Congress created the
post of military judge in 1968, the question would be whether the duties of a
principal officer may be assigned to an existing multiperson inferior office, so
that some of the office's occupants, at the choice of a lower level Executive
Branch official, will serve in new principal-officer positions. And as to officers
who received their commissions after 1968 and whose appointments therefore
included the potential for service as military judge, the question would be
whether a multiperson office may be created in which individuals will occupy,
again at the choice of a lower level Executive Branch official, either inferiorofficer or principal-officer positions.
The Appointments Clause requires each question to be answered in the
negative. "The Constitution, for purposes of appointment, very clearly divides
all its officers into two classes," United States v. Germaine, 99 U. S. 508, 509
(1879), and though Congress has broad power to create federal offices and
assign duties to them, see Myers v. United States, 272 U. S. 52, 128-129
(1926), it may not, even with the President's assent, disregard the Constitution's
distinction between principal and inferior officers. It may not, in particular,
dispense with the precise process of appointment required for principal officers,

whether directly or "by indirection." Springer v. Philippine Islands, 277 U. S.

189, 202 (1928). Accordingly, I find it necessary to consider the status of
military judges under the Appointments Clause but, first, to explain why the
Appointments Clause's origins and purposes support my reading of its text.
*

In framing an Appointments Clause that would ensure "a judicious choice" of

individuals to fill the important offices of the Union, The Federalist No. 76, p.
510 (J. Cooke ed. 1961) (A. Hamilton), the delegates to the Philadelphia
Convention could draw on their experiences with two flawed methods of
appointment. They were aware of the pre-revolutionary "`manipulation of
official appointments'" by the Crown and its colonial governors, "one of the
American revolutionary generation's greatest grievances against executive
power."Freytag v. Commissioner, 501 U. S. 868, 883 (1991) (quoting G.
Wood, The Creation of The American Republic 1776-1787, p. 79 (1969)). They
were also aware of the postrevolutionary abuse by several state legislatures
which, in reaction, had been given the sole power of appointment; by the time
of the Convention the lodging of exclusive appointing authority in state
legislatures "`had become the principal source of division and faction in the
states.'" Freytag, supra, at 904, and n. 4 (SCALIA, J., concurring in part and
concurring in judgment) (quoting Wood, supra, at 407).
With error and overcorrection behind them, the Framers came to appreciate the
necessity of separating at least to some degree the power to create federal
offices (a power they assumed would belong to Congress) from the power to
fill them, and they came to see good reason for placing the initiative to appoint
the most important federal officers in the single-person presidency, not the
multimember Legislature. But the Framers also recognized that lodging the
appointment power in the President alone would pose much the same risk as
lodging it exclusively in Congress: the risk of "a[n] incautious or corrupt
nomination." 2 M. Farrand, Records of the Federal Convention of 1787, p. 43
(rev. ed. 1937) (J. Madison) (hereinafter Farrand). Just as the Appointments
Clause's grant to the President of the power to nominate principal officers
would avert legislative despotism, its requirement of Senate confirmation
would serve as an "excellent check" against Presidential missteps or
wrongdoing. The Federalist No. 76, supra, at 513. 1Accord, 3 J. Story,
Commentaries on the Constitution of the United States 374-377 (1833) (The
President will be more likely than "a large [legislative] body" to make
appointments whose "qualifications are unquestioned, and unquestionable"; but
because exclusive Presidential appointment power "may be abused," the
Appointments Clause provides the "salutary check" of Senate confirmation,
and "[t]he consciousness of this check will make the president more
circumspect, and deliberate in his nominations for office").

In the Framers' thinking, the process on which they settled for selecting
principal officers would ensure "judicious" appointments not only by
empowering the President and the Senate to check each other, but also by
allowing the public to hold the President and Senators accountable for
injudicious appointments. "[T]he circumstances attending an appointment [of a
principal officer], from the mode of conducting it, would naturally become
matters of notoriety," Hamilton wrote; "and the public would be at no loss to
determine what part had been performed by the different actors." The Federalist
No. 77, at 517. As a result,
"[t]he blame of a bad nomination would fall upon the president singly and
absolutely. The censure of rejecting a good one would lie entirely at the door of
the senate; aggravated by the consideration of their having counteracted the
good intentions of the executive. If an ill appointment should be made the
executive for nominating and the senate for approving would participate though
in different degrees in the opprobrium and disgrace." Ibid.
The strategy by which the Framers sought to ensure judicious appointments of
principal officers is, then, familiar enough: the Appointments Clause separates
the Government's power but also provides for a degree of intermingling, all to
ensure accountability and "preclude the exercise of arbitrary power." Myers v.
United States, 272 U. S., at 293 (Brandeis, J., dissenting).
The strict requirements of nomination by the President and confirmation by the
Senate were not carried over to the appointment of inferior officers. A degree of
flexibility was thought appropriate in providing for the appointment of officers
who, by definition, would have only inferior governmental authority. See 2
Farrand 627. But although they allowed an alternative appointment method for
inferior officers, the Framers still structured the alternative to ensure
accountability and check governmental power: any decision to dispense with
Presidential appointment and Senate confirmation is Congress's to make, not
the President's, but Congress's authority is limited to assigning the appointing
power to the highly accountable President or the heads of federal departments,
or, where appropriate, to the courts of law.
B

If the structural benefits the Appointments Clause was designed to provide are
to be preserved, the Clause must be read to forbid the two ways in which the
benefits can be defeated. First, no branch may aggrandize its own appointment
power at the expense of another. See Buckley v. Valeo, 424 U. S., at 128-129.
Congress, for example, may not unilaterally fill any federal office; and the
President may neither select a principal officer without the Senate's
concurrence, nor fill any office without Congress's authorization.2Second, no

branch may abdicate its Appointments Clause duties. Congress, for example,
may not authorize the appointment of a principal officer without Senate
confirmation; nor may the President allow Congress or a lower level Executive
Branch official to select a principal officer.3
To be sure, "power is of an encroaching nature" and more likely to be usurped
than surrendered. The Federalist No. 48, at 332 (J. Madison). For this reason,
our Appointments Clause cases (like our separation-of-powers cases generally)
have typically addressed allegations of aggrandizement rather than abdication.
See, e. g., Buckley v. Valeo, supra; Springer v. Philippine Islands, 277 U. S.
189 (1928); Shoemaker v. United States, 147 U. S. 282 (1893). 4Nevertheless, "
[t]he structural interests protected by the Appointments Clause are not those of
any one branch of Government but of the entire Republic," and "[n]either
Congress nor the Executive can agree to waive th[e] structural protection[s]"
the Clause provides. Freytag, 501 U. S., at 880. The Appointments Clause
forbids both aggrandizement and abdication. 5
C

If military judges were principal officers, the method for selecting them, which
is prescribed in legislation adopted by Congress and signed by the President,
would amount to an impermissible abdication by both political branches of their
Appointments Clause duties. Military officers commissioned before 1968,
though they received Presidential appointment and Senate confirmation, were
chosen to fill inferior offices that did not carry the possibility of service as a
military judge. If military judges were principal officers, the Military Justice
Act of 1968 would have authorized the creation and filling of principal offices
without any Presidential nomination or Senate confirmation to that principal
office, or indeed to any principal office at all. Such a process would preclude
the President, the Senate, and the public from playing the parts assigned to
them, parts the Framers thought essential to preventing the exercise of arbitrary
power and encouraging judicious appointments of principal officers.
The office to which military officers have been appointed since enactment of
the 1968 Act includes the potential for service as a military judge. But that
would be a sufficient response to petitioners' Appointments Clause objection
only if military judges were inferior officers. Otherwise, the method for
selecting military judges even from the ranks of post-1968 commissioned
officers would reflect an abdication of the political branches' Appointments
Clause duties with respect to principal officers. Admittedly, the degree of
abdication would not be as extreme as in the prior setting, for the President and
Senate are theoretically aware that each officer nominated and confirmed may
serve as a military judge. Judging by the purposes of the Appointments Clause,
however, this difference is immaterial. It cannot seriously be contended that in

confirming the literally tens of thousands of military officers each year the
Senate would, or even could, adequately focus on the remote possibility that a
small number of them would eventually serve as military judges.6And the
method for appointing military judges allows the President no formal role at all
in the selection of the particular individuals who will actually serve in those
positions. This process likewise deprives the public of any realistic ability to
hold easily identifiable elected officials to account for bad appointments. Thus
while, as the Court explains, see ante, at 171-172, Congress has certainly
attempted to create a single military office that includes the potential of service
as a military judge, I believe the Appointments Clause forbids the creation of
such a single office that combines inferior- and principal-officer roles, thereby
disregarding the special treatment the Constitution requires for the appointment
of principal officers. For these reasons, if military judges were principal
officers, the current scheme for appointing them would raise a serious
Appointments Clause problem indeed, as the Solicitor General conceded at oral
argument. See Tr. of Oral Arg. 30-31.
D

The argument that military judges are principal officers is far from frivolous. It
proceeds by analogizing military judges to Article III circuit and district judges,
who are principal officers,7and to Article I Tax Court judges, who Freytag
suggests are principal officers too (since, Freytag held, Tax Court judges may
appoint inferior officers). In terms of the factors identified in Morrison v. Olson
as significant to determining the Appointments Clause status of a federal
officer, the office of military judge is not "limited in tenure," as that phrase was
used in Morrison to describe "appoint[ment] essentially to accomplish a single
task [at the end of which] the office is terminated." 487 U. S., at 672. Nor are
military judges "limited in jurisdiction," as used in Morrison to refer to the fact
that an independent counsel may investigate and prosecute only those
individuals, and for only those crimes, within the scope of the jurisdiction
granted by the special three-judge appointing court. See ibid. Over the cases
before them, military judges would seem to be no more "limited [in] duties"
than lower Article III or Tax Court judges. Id., at 671. And though military
judges are removable, the same is true of "most (if not all) principal officers in
the Executive Branch." Id., at 716 (SCALIA, J., dissenting) (emphasis deleted).
The argument that military judges are principal officers, however, is not
without response. Since Article I military judges are much more akin to Article
I Tax Court judges than lower Article III judges, the analogy to Tax Court
judges proves nothing if Tax Court judges are inferior officers, which they may
be. The history that justifies declaring the judges of "inferior" Article III courts
to be principal officers is not available for Tax Court judges, and though
Freytag holds that the Tax Court is a "Cour[t] of Law" that can appoint inferior

officers, it may be that the Appointments Clause envisions appointment of

some inferior officers by other inferior officers.
But even if Tax Court judges are principal officers, military trial judges
compare poorly with them, because not only the legal rulings of military trial
judges but also their fact-finding and sentencing are subject to de novo scrutiny
by the Courts of Military Review. See 10 U. S. C. 866(c). Though the powers
of Court of Military Review judges are correspondingly greater, they too are
distinguishable from Tax Court judges. First, Tax Court judges are removable
only for cause, see 26 U. S. C. 7443(f), while Court of Military Review
judges may be freely "detail[ed]" by the relevant Judge Advocate General to
nonjudicial assignments.8See ante, at 171-172. Second, Tax Court judges serve
fixed 15-year terms, see 26 U. S. C. 7443(e), while Court of Military Review
judges have no fixed term of office and typically serve for far less than 15
years.9See Brief for Petitioners 5 (military judges "often serve terms of two,
three, or four years").
"The line between `inferior' and `principal' officers is one that is far from
clear," Morrison, 487 U. S., at 671, and though there is a good deal of force to
the argument that military judges, at least those on the Courts of Military
Review, are principal officers, it is ultimately hard to say with any certainty on
which side of the line they fall. The Court has never decided how to resolve
doubt in this area; the Morrison Court did not address this issue since it
understood the independent counsel to be "clearly" an inferior officer. Ibid.
Forced to decide now, I agree with the approach offered by then-Judge
Ginsburg in her Court of Appeals opinion in the independent-counsel case.
"Where... the label that better fits an officer is fairly debatable, the fully rational
congressional determination surely merits... tolerance." In re Sealed Case, 838
F. 2d 476, 532 (CADC) (dissenting opinion), rev'd sub nom. Morrison v. Olson,
487 U. S. 654 (1988). Since the chosen method for selecting military judges
shows that neither Congress nor the President thought military judges were
principal officers, and since in the presence of doubt deference to the political
branches' judgment is appropriate, I conclude that military judges are inferior
officers for purposes of the Appointments Clause.
II
Because the limits the Appointments Clause places on the creation and
assignment of duties to inferior offices are respected here, for the reasons the
Court and JUSTICE SCALIA give, and on the understanding that the Court
addresses only the Appointments Clause's limits regarding inferior officers, I
join the Court's opinion.

Notes:
1

Hamilton's Federalist Papers writings contain the most thorough contemporary

justification for the method of appointing principal officers that the Framers
adopted. See The Federalist Nos. 76 and 77, pp. 509-521. Hamilton was clear
that the President ought initially to select principal officers and that the
President was therefore rightly given the sole power to nominate:
"The sole and undivided responsibility of one man will naturally beget a livelier
sense of duty and a more exact regard to reputation. He will on this account feel
himself under stronger obligations, and more interested to investigate with care
the qualities requisite to the stations to be filled, and to prefer with impartiality
the persons who may have the fairest pretentions to them." Id., No. 76, at 510511.
Hamilton also left no doubt that the role of ultimate approval assigned to the
Senate was vital:
"To what purpose then require the co-operation of the Senate? I answer, that the
necessity of their concurrence would have a powerful, though in general a silent
operation. It would be an excellent check upon a spirit of favoritism in the
President, and would tend greatly to prevent the appointment of unfit characters
from State prejudice, from family connection, from personal attachment, or
from a view to popularity." Id., at 513.
The same notes were struck in the Constitutional Convention, where Hamilton
was actually the first to suggest that both the President and the Senate be
involved in the appointments process. See 1 Farrand 128; J. Harris, The Advice
and Consent of the Senate 21 (1953). For example, Gouvernor Morris, who was
among those initially favoring vesting exclusive appointment power in the
President, see 2 Farrand 82, 389, ultimately defended the assignment of shared
authority for appointment on the ground that "as the President was to nominate,
there would be responsibility, and as the Senate was to concur, there would be
security." Id., at 539. See also 4 J. Elliot, Debates on the Federal Constitution
134 (1891) (James Iredell in North Carolina ratifying convention) ("[T]he
Senate has no other influence but a restraint on improper appointments . . . .
[The Appointments Clause provides] a double security"). See generally Harris,
supra, at 17-26 (summarizing debates in the Constitutional Convention and in
the ratifying conventions).

While it is true that "the debates of the Constitutional Convention, and the
Federalist Papers, are replete with expressions of fear that the Legislative

Branch of the National Government will aggrandize itself at the expense of the
other two branches,"Buckley v. Valeo, 424 U. S. 1, 129 (1976), the Framers
also expressed concern over the threat of expanding Presidential power,
including specifically in the context of appointments. See, e. g., 1 Farrand 101
(G. Mason); id., at 103 (B. Franklin). Indeed, the Framers added language to
both halves of the Appointments Clause specifically to address the concern that
the President might attempt unilaterally to create and fill federal offices. See C.
Warren, The Making of the Constitution 642 (1937)(discussing references in
the Appointments Clause to principal offices "`established by Law,'" and to the
power of appointing inferior officers which "`Congress may by law'" vest as
specified). No doubt, Article I's assignment to Congress of the power to make
laws makes the Legislative Branch the most likely candidate for encroaching on
the power of the others. But Article II gives the President means of his own to
encroach, and indeed we have been forced to invalidate Presidential attempts to
usurp legislative authority, as the Buckley Court recognized: "The Court has
held that the President may not execute and exercise legislative authority
belonging only to Congress." Buckley, supra, at 123 (citing Youngstown Sheet
& Tube Co. v. Sawyer, 343 U. S. 579 (1952)).
3

InFreytag v. Commissioner, 501 U. S. 868, 884 (1991), we observed that in the

Appointments Clause the Framers limited the "diffusion" of the appointment
power in order to "ensure that those who wielded it were accountable to
political force and the will of the people." Id., at 884. Depending on the means
used to circumvent the Appointments Clause, "diffusion" can implicate either
the anti-aggrandizement or the antiabdication principle. If the full Congress
creates a principal office and fills it, for example, it has adopted a more diffuse
and less accountable mode of appointment than the Constitution requires; and it
has violated the bar on aggrandizement. Cf. The Federalist No. 77, at 519
(explaining that the House of Representatives is too numerous a body to be
involved in appointments). And if Congress, with the President's approval,
authorizes a lower level Executive Branch official to appoint a principal officer,
it again has adopted a more diffuse and less accountable mode of appointment
than the Constitution requires; this time it has violated the bar on abdication.

The theme of abdication has not been entirely absent, however. InMorrison v.
Olson, 487 U. S. 654 (1988), the Court considered a challenge to a law
authorizing appointment of an independent counsel by a three-judge panel and
without Senate confirmation. Though the law was adopted by Congress and
signed by the President, the Court said that the law would nevertheless violate
the Appointments Clause if the independent counsel were a principal officer.
See id., at 671. If the independent counsel were such an officer, the law would
represent an impermissible abdication by both Congress and the President of
their Appointments Clause duties.

CfJ. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 406 (1928) (Taft,
C. J.) ("[I]t is a breach of the National fundamental law if Congress gives up its
legislative power and transfers it to the President, or to the Judicial branch, or if
by law it attempts to invest itself or its members with either executive power or
judicial power"). As Chief Justice Taft's remark suggests, the ready analogy to
the Appointments Clause's antiabdication principle is what has been called
"nondelegation doctrine." The Court has unanimously invalidated legislation in
which Congress delegated "to others the essential legislative functions with
which it is . . . vested," A. L. A. Schechter Poultry Corp. v. United States, 295
U. S. 495, 529 (1935); id., at 553-554 (Cardozo, J., concurring), and it has read
other statutes narrowly to avoid annulling them as excessive abdications of
constitutional responsibility, see Industrial Union Dept., AFL-CIO v. American
Petroleum Institute, 448 U. S. 607, 646 (1980) (plurality opinion); National
Cable Television Assn., Inc. v. United States, 415 U. S. 336, 342 (1974). See
also Industrial Union Dept., supra, at 672-676 (REHNQUIST, J., concurring in
judgment) (discussing limits on the delegation of Congress's legislative power).
Nondelegation doctrine has been criticized. But see J. Ely, Democracy and
Distrust 131-134 (1980) (distinguishing non-delegation doctrine from less
defensible theories invoked to strike down New Deal legislation). Barring
Appointments Clause abdication strikes me as plainly less problematic,
however, because the text of the Constitution describes with precision the
nature of the branches' appointments powers.

Writing in 1953, one observer pointed out that if each of the 49,956
nominations for military office sent to the Senate in 1949 "were considered for
one minute . . . , it would require 832 hours to pass upon the nominations [or]
an average of more than 5 hours each day that the Senate is in session." Harris,
Advice and Consent of the Senate, at 331. This observer concluded that "Senate
confirmation of military and naval officers has become for all practical
purposes an empty formality."Ibid.

It is true that the Court has never so held and that the Constitution refers to the
lower federal courts as "inferior Courts." Art. III, 1. But from the early days of
the Republic "[t]he practical construction has uniformly been that [judges of the
inferior courts] are not... inferior officers," 3 J. Story, Commentaries on the
Constitution 456, n. 1 (1833), and I doubt many today would disagree.
InFreytag, indeed, the Court assumed that lower federal judges were principal
officers. See 501 U. S., at 884 (listing "ambassadors, ministers, heads of
departments, and judges" as principal officers). But see Shartel, Federal Judges
Appointment, Supervision, and RemovalSome Possibilities Under the
Constitution, 28 Mich. L. Rev. 485, 499-529 (1930) (arguing that lower federal
judges should, and constitutionally can, be appointed by the Chief Justice).

According to the Government, "[t]he [Uniform Code of Military Justice] and

the services' implementing regulations are carefully structured to ensure that
military judges are independent and impartial." Brief for United States 42. This
is offered to repel petitioners' due process claim, but it strengthens petitioners'
Appointments Clause position. It does not strengthen it enough, however, for
the fact remains that military judges are removable for a broad array of reasons

According to the Government, "military judges have the equivalent of tenure in

the form of stable tours of duty."Id., at 31. Again, though offered as a defense to
petitioners' due process challenge, this aids petitioners' Appointments Clause
argument. The fact remains, however, that the statute provides no fixed term of
office for military judges.
JUSTICE GINSBURG, concurring.
The care the Court has taken to analyze petitioners' claims demonstrates once
again that men and women in the Armed Forces do not leave constitutional
safeguards and judicial protection behind when they enter military service.
Today's decision upholds a system of military justice notably more sensitive to
due process concerns than the one prevailing through most of our country's
history, when military justice was done without any requirement that legally
trained officers preside or even participate as judges. Nevertheless, there has
been no peremptory rejection of petitioners' pleas. Instead, the close inspection
reflected in the Court's opinion confirms:
"[I]t is the function of the courts to make sure, in cases properly coming before
them, that the men and women constituting our Armed Forces are treated as
honored members of society whose rights do not turn on the charity of a
military commander. . . . A member of the Armed Forces is entitled to equal
justice under law not as conceived by the generosity of a commander but as
written in the Constitution...." Winters v. United States, 89 S. Ct. 57, 59-60, 21
L. Ed. 2d 80, 84 (1968) (Douglas, J., in chambers).
See also Frontiero v. Richardson, 411 U. S. 677 (1973); Harmon v. Brucker,
355 U. S. 579 (1958); Crawford v. Cushman, 531 F. 2d 1114 (CA2 1976).
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in part
and concurring in the judgment.

think the Appointments Clause issue requires somewhat more analysis than the
Court provides, and the Due Process Clause issue somewhat less

As to the former: The Court states that these cases differ fromShoemaker v.
United States, 147 U. S. 282 (1893), because, after the passage of the Military
Justice Act of 1968, military judges could be selected from "hundreds or
perhaps thousands of qualified commissioned officers," ante, at 174, so that
there is no concern (as there was in Shoemaker, where a single incumbent held
the office whose duties were enlarged) that "Congress was trying to both create
an office and also select a particular individual to fill the office," ante, at 174.
That certainly distinguishes Shoemaker, but I do not see why it leads to the
Court's conclusion that therefore "germaneness" analysis need not be
conducted here as it was in Shoemaker (though the Court proceeds to conduct it
anyway, ante, at 174-176).
Germaneness analysis must be conducted, it seems to me, whenever that is
necessary to assure that the conferring of new duties does not violate the
Appointments Clause. Violation of the Appointments Clause occurs not only
when (as in Shoemaker) Congress may be aggrandizing itself (by effectively
appropriating the appointment power over the officer exercising the new
duties), but also when Congress, without aggrandizing itself, effectively lodges
appointment power in any person other than those whom the Constitution
specifies. Thus, "germaneness" is relevant whenever Congress gives power to
confer new duties to anyone other than the few potential recipients of the
appointment power specified in the Appointments Clausei. e., the President,
the Courts of Law, and Heads of Departments.
The Judge Advocates General are none of these. Therefore, if acting as a
military judge under the Military Justice Act of 1968 is nongermane to serving
as a military officer, giving Judge Advocates General the power to appoint
military officers to serve as military judges would violate the Appointments
Clause, even if there were "hundreds or perhaps thousands" of individuals from
whom the selections could be made. For taking on the nongermane duties of
military judge would amount to assuming a new "Offic[e]" within the meaning
of Article II, and the appointment to that office would have to comply with the
strictures of Article II. I find the Appointments Clause not to have been
violated in the present case, only because I agree with the Court's dictum that
the new duties are germane.*
II
With respect to the Due Process Clause challenge, I think it neither necessary
nor appropriate for this Court to pronounce whether "Congress has achieved an
acceptable balance between independence and accountability," ante, at 180. As
today's opinion explains, a fixed term of office for a military judge "has never

been a part of the military justice tradition," ante, at 178. "Courts-martial ...
have been conducted in this country for over 200 years without the presence of
a tenured judge," ante, at 179. Thus, in the Military Justice Act of 1968 the
people's elected representatives achieved a "balance between independence and
accountability" which, whether or not "acceptable" to five Justices of this
Court, gave members of the military at least as much procedural protection, in
the respects at issue here, as they enjoyed when the Fifth Amendment was
adopted and have enjoyed ever since. That is enough, and to suggest otherwise
arrogates to this Court a power it does not possess.
"[A] process of law, which is not otherwise forbidden, must be taken to be due
process of law, if it can show the sanction of settled usage both in England and
in this country . . . . [That which], in substance, has been immemorially the
actual law of the land . . . is due process of law." Hurtado v. California, 110 U.
S. 516, 528 (1884).
As sometimes ironically happens when judges seek to deny the power of
historical practice to restrain their decrees, see, e. g., Burnham v. Superior
Court of Cal., County of Marin, 495 U. S. 604, 637-639 (1990) (Brennan, J.,
concurring in judgment), the present judgment makes no sense except as a
consequence of historical practice. Today's opinion finds "an acceptable
balance between independence and accountability" because the Uniform Code
of Military Justice "protects against unlawful command influence by precluding
a convening authority or any commanding officer from preparing or reviewing
any report concerning the effectiveness, fitness, or efficiency of a military
judge relating to his judicial duties"; because it "prohibits convening authorities
from censuring, reprimanding, or admonishing a military judge `. . . with
respect to any. .. exercise of . . . his functions in the conduct of the proceeding'
"; and because a Judge Advocate General cannot decertify or transfer a military
judge "based on the General's opinion of the appropriateness of the judge's
findings and sentences." Ante, at 180, 181. But no one can suppose that similar
protections against improper influence would suffice to validate a state
criminal-law system in which felonies were tried by judges serving at the
pleasure of the Executive. I am confident that we would not be satisfied with
mere formal prohibitions in the civilian context, but would hold that due
process demands the structural protection of tenure in office, which has been
provided in England since 1700, see J. H. Baker, An Introduction to English
Legal History 145-146 (2d ed. 1979), was provided in almost all the former
English colonies from the time of the Revolution, see Ziskind, Judicial Tenure
in the American Constitution: English and American Precedents, 1969 S. Ct.
Rev. 135, 138-147, and is provided in all the States today, see National Center
for State Courts, Conference of State Court Administrators, State Court

Organization 1987, pp. 271-302 (1988). (It is noteworthy that one of the
grievances recited against King George III in the Declaration of Independence
was that "[h]e has made Judges dependent on his Will alone, for the tenure of
their offices.")
Thus, while the Court's opinion says that historical practice is merely "a factor
that must be weighed in [the] calculation," ante, at 179, it seems to me that the
Court's judgment today makes the fact of a differing military tradition utterly
conclusive. That is as it should be: "[N]o procedure firmly rooted in the
practices of our people can be so `fundamentally unfair' as to deny due process
of law." Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 38 (1991) (SCALIA,
J., concurring).
For these reasons, I concur in Parts I and II-A and concur in the judgment.
Notes:
*

The further issues perceptively discussed in JUSTICE SOUTER'S concurrence

namely, whether the Appointments Clause permits conferring principalofficer responsibilities upon an inferior officer in a manner other than that
required for the appointment of a principal officer (and, if not, whether the
responsibilities of a military judge are those of a principal officer)were in my
view wisely avoided by the Court, since they were inadequately presented and
not at all argued. The Petition for Certiorari said only: "There is considerable
force to the argument that military appellate judges are `superior' or `principal'
officers, in which case the President must appoint them with the advice and
consent of the Senate. But in any event, . . . ." Pet. for Cert. 12. The only
reference in petitioners' brief was the statement that "if military judges are
principal officers, it is an even more serious transgression of the purposes of the
Appointments Clause to have their original commissions substitute for an
appointment to a principal office." Brief for Petitioners 15. As JUSTICE
SOUTER'S opinion demonstrates, the issues are complex; they should be
resolved only after full briefing and argument